In re Washburn's Estate, 11 Cal.App.
735 (1909)
106 P. 415
11 Cal.App. 735, 106 P. 415
In the Matter of the Estate of ALBERT
HENRY WASHBURN, Deceased.
JEANIE W. HIGGINS, Guardian
of HENRIETTA HIGGINS and
CHARLES HIGGINS, Minors, Appellant,
v.
E. P. WASHBURN, J. S. WASHBURN
and J. B. COOK, Trustees Under
Will of Said Deceased, Respondents.
Civ. No. 630.
District Court of Appeal, Third District, California.
November 13, 1909.
HEADNOTES
WILLS--DEVISE IN TRUST--INCOME DURING
LIVES OF WIDOW AND DAUGHTER--CONTINGENT
REMAINDER TO SURVIVING CHILDREN AND
GRANDCHILDREN.
--Where a will devised property to trustees in trust to pay
the income to the surviving widow of the testator, and to his
married daughter, and to the survivor of them during life, and
devised the remainder upon the termination of the trust to the
then living children of the married daughter, or her then living
grandchildren by right of representation, such devise of the
remainder is of a contingent remainder, which does not vest
in any child or grandchild of the daughter until her death.
ID.--UNCERTAINTY OF RIGHT OF ENJOYMENT.
--It is the uncertainty of the right of enjoyment, and not the
mere uncertainty of the actual enjoyment, that makes such
remainder contingent. The uncertainty of any of the children
of the married daughter surviving her renders the interest of
any of them contingent.
ID.--DISTINCTION BETWEEN VESTED AND
CONTINGENT REMAINDERS.
--A remainder is vested, when there is some person in esse
known and ascertained, who by the instrument creating the
estate is to take and enjoy the estate upon the expiration of the
existing particular estate, and whose right to such remainder
no contingency can defeat; but the remainder is contingent,
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when it depends upon the happening of a contingent event,
whether the estate limited as a remainder shall ever take effect
at all.
ID.--VESTED AND CONTINGENT GIFTS TO CLASS OF
PERSONS.
--If there are words of present gift to a class of persons in
existence, in remainder, the remainder is vested, though it
cannot be ascertained until the determination of the particular
estate who will ultimately take; but if futurity attaches to
the gift, so that it is not intended to take effect until the
determination of the particular estate, the remainder to a class
of persons then existing is contingent.
ID.--PREFERENCE OF VESTED REMAINDER--
LANGUAGE OF WILL CONTROLLING.
--Although the law prefers to consider future estates as vested,
yet it also seeks to effectuate the will of a testator, and if
the language used shows his intention not to create a vested
*736 estate, but expresses a contingency as to who shall
take, the language of the testator must control.
ID.--FAIR CONSTRUCTION OF WILL SHOWING
CONTINGENT REMAINDER.
Giving a fair construction to the will, and yielding to the
intention of the testator, it is concluded that the remainder
is contingent, and will only accrue to such children of the
married daughter as may be living at the time of her death.
ID.--CONVEYANCE OF LIFE ESTATE TO CHILDREN IN
ESSE--MERGER NOT DISCHARGING TRUST.
--A conveyance of the whole surviving life estate vested in
the surviving married daughter to her children in esse does not
create a merger discharging the trust, which must be vested in
the trustees until her death, notwithstanding such conveyance.
ID.--CONDITIONS OF MERGER NONEXISTENT.
--The whole legal and equitable title must exist in the same
person to constitute a merger of a life estate in the fee. The
legal title being in the trustees, and the children in esse having
no existent legal estate, there could be no merger of the life
estate in the fee. There can be no merger where a life estate
and a contingent estate are united.
ID.--RULE IN EQUITY.
--Wherever it would work injustice or defeat the intention of
the donor to work a merger, the two estates will be kept alive,
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106 P. 415
although they come together in one person. While merger
at law follows immediately upon the union of a greater and
lesser estate in the same ownership, it does not so follow in
equity. There the doctrine is not favored, and the estates will
be kept separate where the intention of the parties and justice
require it.
ID.--MANIFEST INTENTION OF TESTATOR TO
PRESERVE TRUST REGARDLESS OF CONTINGENT
REMAINDER.
--Even if it be conceded that the remainder was vested and
not contingent, it is held that it was the manifest intention
of the testator that the trust should be kept alive for the
benefit of all parties concerned, and safely transmitted to the
remaindermen, consisting not only of the children in esse,
but all who should become the future issue of the married
daughter, during her coverture, and to be transmitted to them
upon her death.
ID.--TRUST IN FAVOR OF ALL ISSUE.
--Where a trust is in favor of the children now living, or that
may hereafter be born of certain parents, the trustees will
retain the title so long as there is a possibility of issue, which,
in the eye of the law, continues as long as the woman lives or
coverture exists.
SUMMARY
APPEAL from a decree of the Superior Court of Mariposa
County distributing the estate of a deceased person. J. J.
Trabucco, Judge.
The facts are stated in the opinion of the court. *737
COUNSEL
Everett Ball, and John M. Corcoran, for Appellant.
Wilson & Wilson, for Respondents.
CHIPMAN, P. J.
Petition for final distribution of the estate of deceased. After
making certain bequests of money, which have been paid, the
will of deceased provides as follows:
‘II.
‘All the rest, residue and remainder of my Estate, of every
kind and character, and wheresoever situated, of which I may
die seized and possessed, I give, devise and bequeath to my
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brothers, Edward P. Washburn and John H. Washburn, of
Wawona, and to Jay B. Cook of Yosemite Valley; in trust,
however, to hold, manage and control, and to invest and
reinvest the same in such manner as in their judgment may
seem best, and to pay over to my beloved wife Jean Bruce
Washburn for and during the term of her natural life one
half of the entire net income arising therefrom, in monthly
installments; and to pay over the other one-half of said
net income in monthly installments to my daughter Jeanne
Washburn Higgins, wife of C. C. Higgins for and during the
term of her natural life.
‘Upon the death of either my said wife or my said daughter the
one-half of the income to which the one so dying was entitled
shall be paid to the survivor until her death.
‘Upon the death of such survivor this trust shall cease and
determine and all of said property so held in trust, together
with all accumulations thereon and thereof, shall vest in and
belong to Henrietta Higgins and Charles Higgins, the children
of my said daughter, and such other children as may be born
to her, or in such of them as shall then be living, share and
share alike, the children of any deceased child, if such there
be, to take by right of representation.
‘III.
‘I hereby appoint my said brothers Edward P. Washburn and
John S. Washburn and my friend Jay B. Cook, to be the
Executors of this my last Will and Testament, and I direct that
no bond or other security be required of them or either of them
at any time for the faithful performance of their duties as such
Executors or as such Trustees. *738
‘I hereby authorize and empower my said Executors to lease
or sell any of the property of my Estate at public or private
sale and with or without notice, and without the previous or
any order of any court.‘
It appears from the findings of the court that the estate is
in condition to be closed; all the property was community
property, to one-half of which Jean B. Washburn became
entitled on the death of deceased; since his death his wife died,
but prior thereto she conveyed all her interest in the estate to
her daughter, Jeanie W. Higgins, and except as to her interest
in certain shares of the capital stock of the Yosemite Stage
and Turnpike Company (2,662 12 shares) the one-half of said
property to which the widow was entitled has been distributed
as required by law; Henrietta and Charles Higgins, mentioned
in said will, are minors and children of the said Jeanie, but
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106 P. 415
their age does not appear, and she has been appointed and is
the duly qualified and acting guardian of their estates and they
are her only children; prior to filing the petition herein the
said Jeanie conveyed and relinquished to her said children,
Henrietta and Charles, ‘all the rights and interests to which she
was entitled under the will of said decedent by an instrument
in writing‘ (which is set forth in the findings); the residue
of said estate of decedent consists of 5,325 shares of the
Yosemite Stage and Turnpike Company and 25,000 shares of
the Wawona Hotel Company. Jeanie W. Higgins is the wife
of C. C. Higgins, now living. In its conclusions of law the
court found that the said Jeanie W. Higgins, as grantee of her
mother, is entitled to have distributed to her one-half of the
stage company stock (2,662 12 shares), and that the trustees
under the will are entitled to have distributed to them, in trust,
all the remaining property of decedent, ‘to hold, manage and
control the same in such manner as in their judgment may
seem best, and to pay over to the said Henrietta W. Higgins
and Charles Higgins, for and during the term of the natural life
of said Jeanie W. Higgins, and until her death, the entire net
income arising from said property, in monthly installments,‘
and upon the death of the said Jeanie the said trust shall cease,
and all of said property so held in trust, and its accumulations,
shall vest in and belong to said Henrietta and Charles Higgins,
children of said Jeanie, ‘and such other children as may be
*739 born to the said Jeanie W. Higgins, or in such of them
as shall then be living, share and share alike, the children
of any deceased child, if such there be, to take by right of
representation.‘ Decree was entered accordingly.
The appeal is by the plaintiff from that portion of said decree
of final distribution as distributes to the trustees the property
described and refusing to distribute said property as prayed
for in said petition-namely, that all the property except one-
half of the stage company stock be distributed to Henrietta
and Charles Higgins. Briefly stated, the position of appellant
is: That the widow of deceased being dead, Mrs. Higgins, as
sole survivor of the life estate, became the sole beneficiary of
the trust, and that when she conveyed that interest to Henrietta
and Charles, her only children in esse, they became vested
with the entire fee; that the object of the trust was solely to
collect and pay over to Mrs. Higgins the net income of the
property during her life, and as she had conveyed this interest
to her two children, she had no further interest in the estate,
and the object of the trust ceased; that when the vested interest
in remainder and the intermediate and precedent estate of their
mother was centered in the children, the precedent estate was
merged in the greater vested estate in remainder in fee, and the
children became vested with the entire title in fee and hence
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there is nothing to which the trust can attach; that thereupon
it became the duty of the court to distribute the estate to the
persons entitled by law, namely, to the two children, Henrietta
and Charles, subject to open and let in any after born children,
if any.
1. It is important, in some aspects of the case, to discover what
interest these children, born and unborn, take under the will
and when it vests. Future interests are vested or contingent.
(Civ. Code, sec. 693.) ‘A future interest is vested when there
is a person in being who would have a right, defeasible or
indefeasible, to the immediate possession of the property,
upon the ceasing of the intermediate or precedent estate.‘ (Civ.
Code, sec. 694.) ‘A future interest is contingent, whilst the
person in whom, or the event upon which, it is limited to take
effect remains uncertain.‘ (Civ. Code, sec. 695.) *740
There is no subject of the law more abstruse or in which
greater refinement of learning has been displayed than that
of remainders. No definitions ever have been or ever will
be given which will relieve all cases from doubt. Mr. Kent
commends Mr. Blackstone's treatment as far surpassing
all others for its ‘perspicuity, simplicity, comprehension,
compactness, exactness, accuracy and admirable precision.‘
And yet he adds: ‘I have read the chapter frequently but
never without a mixture of delight and despair.‘ (4 Kent's
Commentaries, 208, note, 14th ed., by Mr. Gould.)
Unquestionably, the interest of the unborn children is
contingent, because it is uncertain whether they will ever
come into existence, and should this happen, there is the
still further contingency upon which the taking by them of
any interest would depend-namely, that the life tenant be
then living. The interest of Henrietta and Charles is not so
plainly apparent. The broad distinction between vested and
contingent remainders is this: In the first, there is some person
in esse known and ascertained, who, by the will or deed
creating the estate, is to take and enjoy the estate upon the
expiration of the existing particular estate, and whose right to
such remainder no contingency can defeat. In the second, it
depends upon the happening of a contingent event whether the
estate limited as a remainder shall ever take effect at all. It may
never happen, or it may not happen until after the particular
estate upon which it depends shall have been terminated, so
that the estate in remainder will never take effect. (2 Washburn
on Real Property, sec. 1332.)
Speaking of the New York statute, which is the same as
ours, it was held in the case In re Hoadley, 101 Fed. 233,
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106 P. 415
that if there are words of present gift to a class of persons
in existence, the remainder is vested, though it cannot be
ascertained until the determination of the particular estate
which, if any, members of the class will ultimately take; but
if futurity attaches to the gift so that it is not intended to
take effect until the determination of the particular estate, the
remainder is contingent.
The existence of a contingency, irrespective of the duration of
the remainder, on which contingency possession or enjoyment
depends, is the fundamental characteristic of a contingent
remainder and forms a true, tangible and practical *741
criterion by which the contingent character of a remainder is
limited on an uncertain event, that is, an event which may
never happen, or on an event which may not happen till after
the determination of the particular estate, though it is certain
to happen at some time, or when the remainder is limited to a
person not in being or not ascertained. (24 Am. & Eng. Ency.
of Law, p. 400.)
The law prefers to consider future estates as vested, but
the law also seeks to effectuate the wishes of the testator,
and when his desire is clearly expressed, as we think it is
here, it should be carried out, regardless of the conventional
distinctions made between vested and contingent remainders,
for this is the paramount duty of the court. ‘The will may
disclose an intent not to give a vested interest. This is effected
by words of contingency as to the person who shall take, e.
g., a devise to A, remainder to his children living at the time
of his death.‘ (24 Am. & Eng. Ency. of Law, 2d ed., p. 383.)
In all cases it is the intention, expressed in the instrument
creating the expectant estate, that is to govern, and, therefore,
if the language employed shows an intention to postpone the
vesting until the happening of a certain event, it is contingent.
(24 Am. & Eng. Ency. of Law, 2d ed., p. 392, and cases noted.)
The present capacity to take in possession is not a universal
test. Thus, if land be given to A for life and in case B survives
A then to B in fee simple, the remainder to B is contingent,
because it depends upon an uncertain event, namely, the death
of A in the lifetime of B; but all the while that A and B are both
alive, B's remainder has a present capacity to take effect in
possession should the possession become vacant by the death
of A. (24 Am. & Eng. Ency. of Law, 388.) Numerous instances
of contingent remainders of this sort are cited in the notes.
The true criterion of a vested remainder is the existence
in an ascertained person of a present fixed right of future
enjoyment of the estate limited in remainder, which right will
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take effect in possession immediately on the determination
of the precedent estate, irrespective of any collateral event,
provided the estate in remainder does not determine before
the precedent estate. (24 Am. & Eng. Ency. of Law, 2d ed.,
p. 389.) *742
The will here provides that ‘upon the death of such survivor
this trust shall cease and determine, and all of said property ...
shall vest in and belong to Henrietta Higgins and Charles
Higgins, the children of my said daughter, and such other
children as may be born to her, or in such of them as shall then
be living.‘ This latter clause refers to all of the class-Henrietta
and Charles and any other children born to their mother-and
the property is to vest ‘in such of them as shall then be living,‘
i. e., ‘upon the death of such survivor.‘
By express terms the trust was to continue until the death
of Mrs. Higgins, and that was the precise event upon the
happening of which the title was to vest in the children living
at the death of the testator or ‘such other children as may
be born to her,‘ Mrs. Higgins. It seems to us that nothing is
lacking to make entirely clear the intention that the children
living at the death of the life tenant or ‘the children of any
deceased child‘ then living, were to take, and this could be
known only when the contingent event happened. It is the
uncertainty of the right of enjoyment, and not the uncertainty
of its actual enjoyment, that renders the remainder contingent.
(4 Kent's Commentaries, 202-206.) The uncertainty of any of
the children of the class surviving Mrs. Higgins renders the
interest of any such contingent.
A few cases may be cited as illustrative of the principles we
have endeavored to point out.
In Hayward v. Peavey, 128 Ill. 430, [15 Am. St. Rep. 120,
21 N. E. 503], the will devised the estate to the testator's
executors to be held in trust for his widow during widowhood,
and upon the death or remarriage of the widow, the executors
were to proceed to divide the remainder among his children
specially named, ‘as may then be alive, or the lawful issue
of such of them as may be dead leaving lawful issue.‘ The
interest of one of the sons was sold under execution, and it
was conceded that if this interest was merely contingent the
purchaser took nothing, but otherwise if vested. The court
said: ‘A remainder is said to be vested when a present interest
passes to a party, to be enjoyed in the future, so that the estate
is invariably fixed in a determinate person after the particular
estate terminates; while a contingent remainder is one limited
to take effect, either to a dubious and *743 uncertain
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106 P. 415
person, or upon a dubious and uncertain event. (2 Blackstone's
Commentaries, 168.) ... But it does not necessarily follow that
every estate in remainder which is subject to a contingency
or condition is a contingent remainder. The condition may
be precedent or subsequent. If the former, the remainder
cannot vest until that which is contingent has happened,
and thereby become certain. If the latter, the estate vests
immediately, subject to be defeated by the happening of the
condition. (Citing cases.) It is plain that, in the present case,
the estate devised, so far as Robert Hayward was concerned
(the son above referred to), was subject to a contingency,
viz., his being alive at the time the particular estate should
be determined by the death or remarriage of the widow.
Whether this contingency constituted a condition precedent
or subsequent must be determined by the language of the will.
It seems to be clear, though not wholly free from doubt, that
the intention was not to devise to his son Robert a present
estate subject to be defeated in case of his death before the
termination of the particular estate, but to make the estate
itself conditional upon his being alive at that time.‘ In support
of the opinion the following cases were cited as instances
where the remainder was contingent: Olney v. Hull, 21 Pick.
311, where the words were: ... ‘the land shall then be equally
divided among my sons‘; Nash v. Nash, 12 Allen, 345, the
language was ... ‘at her death to such of his children as might
then be living.‘ In Thompson v. Ludington, 104 Mass. 193,
the provision was: To the widow during life or widowhood,
and directed that at her death or marriage the estate should be
divided ‘equally to and among such of my children as shall
then be living.‘ The distinction made between a remainder
subject to a condition precedent and a condition subsequent
is well shown in Blanchard v. Blanchard, 1 Allen, 223, and
in that case the court said: ‘There being in that portion of
the devise no words of contingency, such as 'if they shall be
living at her death,’ or 'to such of them as shall be living,' the
usual and proper phrases to constitute a condition precedent,
a vested remainder in fee was created.‘
In the recent case of Golladay v. Knock, 235 Ill. 412, [126
Am. St. Rep. 224, 85 N. E. 649], the will devised the testator's
property to his wife, Nancy Golladay, ‘and to her children
*744 after her death; ... and if the said Nancy Golladay
does not have children that will live to inherit said real estate,
that the said real estate, at the death of Nancy Golladay and
her children, fall to Moses Golladay and his heirs of said
county.‘ The court held, as in Hayward v. Peavey, 128 Ill.
430, [15 Am. St. Rep. 120, 21 N. E. 503], that the devise
over to Moses Golladay could not be construed as vesting a
present interest in fee, subject to be devested upon the death of
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the life tenant leaving children surviving her. Said the court:
‘The clearly expressed intention of the testator was to give
his wife a life estate in the premises, with remainder in fee
to such of her children as might be living at the time of her
death; then, to meet the possibility that his wife might die
leaving no children surviving her, he made the devise over to
Moses Golladay and his heirs. Here the devise depended upon
a dubious and uncertain contingency-that is, the death of the
life tenant without leaving children surviving her.‘
In United States Trust Co. v. Roche, 116 N. Y. 120, [22 N. E.
265], by a trust deed a life estate was given to Anna S. Stagg,
remainder to her children living at the time of her death. In
an action to foreclose a mortgage during the life of Anna it
was held that her children were not necessary parties. The
court said: ‘No legal estate in remainder, vested or contingent,
was created by the deed of trust, but the entire legal estate
was vested in the trustee, where it now remains, and James
C. Foster (child of Anna) has no legal estate of any kind to
protect. ... James C. Foster has not a vested interest in the
subject of the trust, nor its avails. His interest is contingent
upon his surviving his mother.‘
In Smith v. Edwards, 88 N. Y. 103, certain property was to
be distributed at the time of the marriage or majority of the
youngest grandchild who ‘may then be living.‘ The court
discussed at some length the question as to the time the
interest vested. The court said: ‘The condition of survival
attached to the gift itself; who the legatees would in fact prove
to be dependent upon a future contingency. Those who were to
take in the prescribed event were uncertain until it happened;
might not be any of those in esse at testator's death, and might
prove to be a grandchild born twenty years later.‘ *745
In Everitt v. Everitt, 29 N. Y. 75, the court said: ‘The leading
inquiry upon which the question of vesting or not vesting
turns is whether the gift is immediate, and the time of
payment, or of enjoyment only postponed, or is future and
contingent, depending upon the beneficiary arriving of age or
surviving some other person, or the like. If futurity is annexed
to the substance of the gift, the vesting is suspended; but if it
appear to relate to the time of payment only, the legacy vests
instanter.‘
For the rule in England, see chapter 2, 2 Redfield on Wills,
second edition, 213. This author says: ‘Where a gift over is
made to take effect in favor of a class, it is in general held
that the gift in remainder is contingent, as to the individual
devisees, since the persons composing the class are not to
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106 P. 415
be ascertained until the period of the determination of the
intervening estate, and there could be no vesting until the
devisees are ascertained.‘ (Id., p. 239.) While in many cases
this, as all other rules, are made to bend to circumstances, it is
everywhere held that it is competent for the testator in terms
to direct whether the estate shall vest or not, and where this is
done all construction is excluded. (Id., p. 244.)
Giving a fair construction to the will and yielding to the
apparent intention of the testator, we reach the conclusion that
the remainder is contingent and will go to such of the class
only as may be living at the death of Mrs. Higgins.
We might, perhaps, have rested the question with the decision
in the case of In re Winter, 114 Cal. 186, [45 Pac. 1063], had
we not thought it best to again examine the matter. In that
case the will bequeathed to the testator's wife all of his estate
except a certain ranch, which latter he bequeathed to her ‘for
the remainder of her life; then it is to be sold and the proceeds
divided between my surviving brothers and sisters.‘ It was
held that ‘it was reasonably clear the intention of the testator
was to bequeath the money proceeds of the ranch to those
brothers and sisters living at the time appointed in the will for
the distribution of the money.‘
2. Appellant's further contention is that the children named not
only took a vested remainder, but that when the lesser estate,
i. e., the life estate, was conveyed to them it *746 became
merged in the greater estate, i. e., the remainder; that the trust
was thus terminated and immediately they were entitled to the
fee absolute. Considered as a contingent remainder, however,
there could be no merger, for the fee is in the trustees.
The definition of a merger precludes the possibility of its
happening where a life estate and a contingent estate only are
united. The whole title, legal as well as equitable, must unite
in one and the same person. Where the two thus meet, without
any intermediate estate, the less is immediately annihilated,
or, in law phrase, ‘merged.‘ (Anderson's Dictionary; 2
Blackstone's Commentaries, 397; 1 Kent's Commentaries,
265.) The merger here claimed is of interests in personal
property, and if the doctrine of merger may apply in such case,
which is certainly unusual, the same principles would apply
as in cases of real estate, we should think.
Where a trust has once been created in respect of real estate,
it attaches to and binds itself upon the estate, and can never
be detached from it, or extinguished, except by a union of
the legal and equitable estates in one person; the equitable, in
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such case, being merged in the legal estate. (2 Washburn on
Real Property, sec. 1469.)
To have the union operate a merger, the estates must unite
in one and the same person, having a commensurate and
coextensive interest in each, with no intervening interest
in another. A legal estate in fee in one who has only a
partial equitable interest, or vice versa, would not merge. (Id.,
sec. 1484.) Wherever it would work injustice, or defeat the
intention of the donor to work a merger, the two estates will
be kept alive although they come together in one person. (Id.,
sec. 1486.) While merger at law follows immediately upon the
union of a greater and lesser estate in the same ownership, it
does not so follow in equity. There the doctrine is not favored
and the estates will be kept separate where the intention of the
parties and justice require it. (Smith v. Roberts, 91 N. Y. 475.)
The court said, in Pryor v. Winter, 147 Cal. 554, [109 Am.
St. Rep. 162, 82 Pac. 202]: ‘Section 741 of the Civil Code
expressly declares-what was always the law-that 'no future
interest can be defeated or barred by any alienation or other
act of the owner of the intermediate or particular interest.’‘
*747 3. But if we are wrong in holding the remainder to
be contingent, we find insuperable objections to the scheme
worked out by appellant. The object of the transfer doubtless
was to discharge the trust, the benefits of which the mother
was willing to forego, that she might, at least during their
minority, manage and control the property for her children,
freed from any restraints by the trustees. Is this allowable by
the simple expedient of a transfer of the life estate and in the
absence of any pretense of mismanagement or fraud of the
trustees? Aside from the question, raised in the briefs, that this
may not be done, except by bill in equity (a question we do
not find it necessary to decide), it seems to us that to carry
out appellant's plan we must fly in the face of the testator's
express directions, and this would be violative of the first duty
of the court-namely, to effectuate his intention. The will bears
the earmarks of skilled professional workmanship. That it was
drawn with a view to have its provisions faithfully and, at
least, substantially, followed cannot be doubted. The testator
selected near of kin as his trustees and devised the property
to them in trust, with power to manage and control the
property and pay over the incomes to his widow and daughter
for their support and maintenance and to the successor of
either of them. He expressly provided that the trust should
continue during the life of the survivor, whichever one it
might be, and he expressly declared that the property was to
vest in the children of his daughter then living or who might
thereafter be born to her, at the death of the survivor, who
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In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415
might happen to be his widow, and not sooner. The character
of the property suggests a necessity for wise and prudent
management, for it consists of shares in a stage company and
in a hotel property. If the testator had thought it unnecessary
to place the management in the hands of his chosen trustees
and for the period named by him, an entirely different method
would have been adopted. But his desire was not only to
provide support for his widow and daughter and the survivor
of either, but to preserve the corpus of the estate for his
daughter's children, and the duties of the trustees were to
cease ‘upon the death of such survivor,‘ the property and
the accumulation to then vest in the children. It must not be
overlooked that the will devises the property to the trustees,
and it is only the incomes which are to be *748 paid to
the widow and daughter. The remaindermen come into their
own at the termination of the trust, the period of which is
definitely fixed. The trustees were given power to lease or sell
any of the property at public or private sale with or without
notice and without the previous order of any court, and the
testator's confidence in his trustees was such that he directed
that no bond or other security be required of them, or either of
them, at any time for the faithful performance of their duties.
All these important powers and duties are to be no longer
imposed upon anyone, and the control and management of
the property is to pass to these two minor children with
absolutely no provision for the protection of unborn children,
except upon the principle that should any appear hereafter,
the estate will open and let them in. The property involved
is all personal property- shares in corporations-and may pass
by indorsement. The decree prayed for places no restrictions
upon these children in the disposition of the property, and it
would be extremely difficult to so frame a decree as would
protect unborn heirs, as might readily be done if the property
were real estate. These children could vote the stock only
through their guardian (Civ. Code, sec. 313); and, if an action
in court should become necessary, it must be conducted by a
guardian. (Civ. Code, sec. 42.)
Counsel for appellant was asked by my associate, Judge Hart,
at the argument, how he would frame a decree that would
place the entire trust fund in the hands of two minors and
their guardian, and at the same time adequately protect the
unborn children, and no satisfactory answer was forthcoming.
The difficulties of accomplishing such a task are many. For
myself I can see no way, if the estate is to be distributed to
these children, except to establish by the decree some sort of
a substituted trust for that created by the testator, and how can
these minors act as trustees during minority? But why struggle
© 2022 Thomson Reuters. No claim to original U.S. Government Works.
to set aside the careful, wellconsidered and entirely sufficient
means of effecting the testator's object which he provided?
It is altogether too narrow a view of the trust to say that the
testator's widow and her daughter were the only beneficiaries
of the will, or that they were the principal or only objects
of testator's bounty. They were to receive only the *749
incomes, rents and profits; the corpus of the estate was to
be husbanded, managed and controlled for the benefit of
two children then living and others who might come after-
the latter a probable event, for Mrs. Higgins' husband is
living. The control and management of the estate was a large
consideration with the testator, and, that the property might
be protected and safely transmitted to the remaindermen was
doubtless also of much concern to the testator in selecting his
trustees. It is inconceivable that he ever thought it possible
or ever intended that the scheme he had so carefully devised
for the benefit of all concerned should be disregarded and one
wholly inadequate to accomplish his object substituted. What
say the courts upon this question?
In Walker v. Sharpe, 68 N. C. 363, a life estate was given the
widow, remainder to her children at her death. The children
were all of age and the widow joined with them for a
dissolution of the trust. There was no possibility of other issue
and the trustees did not object. It was held that the children's
interest vested at the death of their mother, and her surrender
of the life estate was without a valuable consideration and was
not entitled to the approval of the equity court. In Brady v.
Walters, 55 Ga. 25, the land was conveyed to B, the wife of C,
for her sole and separate use, and the use of her children born
and to be born. Held, that a trust estate was created in B and
for the use of her children, and that the trust was not executed
until all probability of the birth of any more children had
become extinct. In Brandenberg v. Thorndike, 139 Mass. 102,
[28 N. E. 575], a life estate was given to the widow, remainder
to be paid three years after her death to certain named nieces
and nephews then surviving. The widow waived her life estate
and took her dower instead. The court said: ‘We must construe
the bequest in favor of the nieces and nephews in the same
manner as if the widow had accepted the provisions of the
will. Recurring to his bequest, it is clear that it cannot now be
determined who will take under it. It is a bequest to the nieces
and nephews 'then surviving’ and to the issue of each niece or
nephew 'the deceased leaving issue them surviving.' It cannot
be known that any of the nieces and nephews now living will
take anything under this bequest. This furnishes a conclusive
reason why the trust cannot now *750 be terminated.‘ The
doctrine is stated in 28 American and English Encyclopedia
7
In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

of Law, second edition, page 946: ‘Where a trust is in favor

We think the trial court reached a correct conclusion, and the
of the children now living or that may hereafter be born of
judgment is therefore affirmed.
certain parents, the trustees will retain the title as long as there
is a possibility of issue, which in the eye of the law continues
as long as the woman lives, or coverture exists.‘ (Godfrey
v. Roberts, 65 N. J. L. 323, [55 Atl. 353]; Bearden v. White Hart, J., and Burnett, J., concurred.
(Tenn.), 42 S. W. 476.) Cases where all the interested parties A petition to have the cause heard in the supreme court, after
or parties who may be interested in the future are in esse and judgment in the district court of appeal, was denied by the
acting or capable of acting suo jure, are not in point here and supreme court on January 10, 1910.
do not apply to a trust where the persons who are to take can
only be determined at the termination of the life estate or death
of the life tenant.

End of Document © 2022 Thomson Reuters. No claim to original U.S.

Government Works.

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 8